This chapter discusses the proposal for a Makarrata Commission to oversee agreement making and truth-telling, and considers evidence received on these issues. The Committee found that stakeholders had different understandings of what ‘agreement making’, ‘Makarrata’, and ‘truth-telling’ might encompass, and held disparate views on mechanisms for achieving these forms of recognition.
The Committee acknowledges that historical discussions have been highly contested, with little consensus on a national approach. While terminology is often unclear and sometimes confusing, this report will use the term ‘agreement making’, based the rationale outlined at paragraph 6.12, below.
The Committee notes that much of the debate surrounding agreement making and truth-telling involves some views that the two are interconnected, or inextricably linked.
Some evidence suggests that no further progress can be made on any kind of recognition without truth-telling, and some suggests that agreement making paves the way for more honest interaction between Indigenous and non-Indigenous peoples, including acknowledgement and acceptance of the facts of Australia’s history.
Other submitters pointed out that the recognition of Aboriginal and Torres Strait Islander peoples through recognition in all the State Constitutions, agreement making, acknowledgments of country, reconciliation action plans and local forms of truth-telling has become a ‘fixed part of the Australian legal and social landscape’. Native title, land rights, heritage protection and Indigenous Land Use Agreements are ‘all acknowledgements of Aboriginal collective identity’.
The Committee also notes evidence suggesting that agreement making and truth-telling are related to the proposal for a First Nations Voice.
The Committee will examine the discussions arising from the Regional Dialogues of the Referendum Council, and the Uluru Statement from the Heart, before considering evidence received on agreement making and truth-telling.
Regional Dialogues process
The Uluru Statement from the Heart called for a Makarrata Commission to supervise a process of truth-telling about Aboriginal and Torres Strait Islander peoples’ history and agreement-making between governments and First Nations.
Makarrata is a Yolngu word from north-eastern Arnhem Land describing ‘a coming together after a struggle, facing the facts of wrongs and living again in peace’. The Committee notes that some people have expressed concern regarding use of the name ‘Makarrata’. The Committee would be pleased to receive more evidence on the cultural context of Makarrata and its potential practical application in the broader Australian democratic context (see paragraph 7.46).
Delegates who participated in the Regional Dialogues conducted by the Referendum Council characterised Makarrata as the culmination of their agenda. They felt that truth-telling and agreement making would capture their aspirations for a fair and honest relationship with government and for a better future for their children based on justice and self-determination.
Truth-telling was highlighted at many of the regional dialogues as an important factor in improving the relationship between Aboriginal and Torres Strait Islander peoples and the government. The Technical Advisers to the Regional Dialogues and the Uluru First Nations Constitutional Convention (Technical Advisers) suggested that delegates felt that truth-telling is about acknowledging the historical context of the current recognition discussion. The Technical Advisers noted commentary from a Torres Strait Islander working group:
This is not about portraying the negative, but it’s about telling the truth. Australia was occupied, and it is still being occupied, that hasn’t changed.
There was also strong support for ‘agreement making’ across all regional dialogues. Professor Sean Brennan, a law academic and one of the Technical Advisers, explained to the Committee that the term ‘agreement making’ was deliberately adopted to reflect the diversity of agreements desired by Aboriginal and Torres Strait Islander peoples:
I think the choice of ‘agreement-making’ is a deliberate one to try and undoubtedly accommodate the very strong support and interest in the notion of treaty-making, and also to respect the fact that people have an intrinsic interest in persuading governments and others—developers and non-government organisations—to come to a table and to engage in the opposite of unilateral dealings; to try and engage in roundtable dealings that allow the people involved to reach the solutions that work for each other.
According to the Technical Advisers, many delegates to the Regional Dialogues noted their long support for agreement making as they felt it offered appropriate means for ‘expressing the reality that Aboriginal and Torres Strait Islander people have never ceded their sovereignty, and respecting that fact’.
Views on agreement making
The Indigenous Peoples Organisation submitted that Aboriginal and Torres Strait Islander peoples have a history of advocacy for agreement making ‘as a tool to establish self-determination’:
… the 1963 Yirrkala Bark Petitions, 1972 Larrakia Petition and the 1988 Barunga Statement, all clearly called for a Treaty…
It also argued that, although the High Court overturned the fiction of terra nullius when it upheld the rights of the Meriam People in the Mabo decision of 1992, ‘the implications of the case remain unresolved’ in the absence of an agreement between the Australian Government and Aboriginal and Torres Strait Islander peoples.
The Technical Advisers observed that delegates felt that agreement making could be a vehicle for empowerment and could deliver greater autonomy to Aboriginal and Torres Strait Islander peoples in the management of community and family affairs:
Through negotiating agreements with government, they saw a way of tackling the tough issues facing their communities by taking responsibility for dealing with them, rather than having governments control their affairs and generally do an unsatisfactory job of improving the situation.
While the Referendum Council acknowledged the strong support for agreement making within the Aboriginal and Torres Strait Islander community, it provided few details regarding the process by which agreements could be negotiated, what they might encompass, or what their desired outcomes might be.
The Council’s final report noted that the dialogues had:
canvassed the negotiation of a ‘national framework agreement under which regional and local treaties’ could be made;
discussed the possibility of agreement making encompassing:
‘a proper say in decision making;
the establishment of a truth commission;
the resolution of land, water and resourcing issues;
recognition of authority and customary law; and
guarantees of respect for the rights of Aboriginal and Torres Strait Islander peoples’; and
debated the ‘legal force’ agreement making should have, ‘particularly whether it should be backed by legislation or given constitutional force’.
The views of stakeholders on the process, content, and outcomes of agreement making varied.
Some, for example the Hon. Mr Kyam Maher MLC, Shadow Minister for Aboriginal Affairs in the South Australian Parliament, felt that agreement making between Aboriginal and Torres Strait Islander peoples and Australian governments should commence at the local level. Before the most recent state election, Mr Maher oversaw the now disbanded agreement making process in South Australia. He noted that extensive consultation with the Aboriginal and Torres Strait Islander community in that state revealed ‘overwhelming’ support for ‘place-based or nation-based agreements’.
Speaking to the Committee in a private capacity in Adelaide, Dr Roger Thomas, the South Australian Treaty Commissioner, also expressed a preference for commencing agreement making with local or regional processes. He suggested that the Aboriginal and Torres Strait Islander community in South Australia would benefit from exposure to agreement making on a smaller scale before engaging at the state or federal level:
When you then start asking people, which is what I did, about what they see as being the important characteristics of a treaty for them and what it could mean to them, a lot of our people did not have clear answers, because it wasn’t something that they gave the bigger picture thought to or had been exposed to the detail of what a treaty could be. So the message for me was that I had to do a lot of work in informing and making them aware of the different models and different aspects of a treaty, using both the Canadian model and certainly using the Treaty of Waitangi model… it’s a matter of building up from the region…
The Indigenous Peoples Organisation focussed on prospects for a national agreement. It suggested that a national agreement would settle sovereignty issues and reduce resistance to constitutional recognition.
A similar view was submitted by the Statement from the Heart Working Group. The group argued that agreements should be ‘negotiated in the first part as a national framework of agreement making, under which regional and local treaties are made’.
Mr Yingiya (Mark) Guyula MLA, of the Northern Territory Parliament, highlighted the importance of incorporating traditional decision making processes into agreement making:
… those nations with traditional decision-making processes must be able to implement these processes… we are sovereign people and we will rely on our law to negotiate and create a genuine treaty.
The Committee also received a broad range of evidence regarding the possible content of agreements and the possible benefits of agreement making for Aboriginal and Torres Strait Islander peoples.
Mr Maher observed that Aboriginal and Torres Strait Islander communities in South Australia generally felt that agreement making should encompass:
formal and legally binding mechanisms for including Aboriginal and Torres Strait Islander communities in government decision making; and
economic independence and development.
Mr Stephen Hynd, Executive Director of Business Improvement at the New South Wales Land Council suggested that agreement making should encompass the return of traditional lands and compensation:
Again, any treaty throughout history has involved components of land and restitution. While the Uluru Statement from the Heart is a very generous statement in its spirit, underlying that is still the need for restitution, including for the spiritual side, for the whole of this nation but also restitution for the dispossession of land.
Mr Garry Goldsmith, Business Manager of the Narungga Nations Aboriginal Corporation in South Australia, suggested that agreement making should be based on recognising sovereignty and representation in decision making. He also argued that agreements should deliver economic empowerment:
… with any sort of treaty… it is the certainty or ascertainment that we are sovereign people, or that we have our own nations and laws that we are governed by and we want the state to recognise those. We also wanted to look at the dispossession of our country—the industries that have taken, and continue to take, from our country—and be compensated for that. We also wanted to look at our representation on local and state government. And we also wanted to look at the ongoing continuation of looking after future generations through resource sharing from the continued taking from our country.
The Indigenous Peoples Organisation felt that a national agreement should encompass the establishment of The Voice and would enable Aboriginal and Torres Strait Islander peoples to assert their self-determination to address political, social, and economic marginalisation and develop their communities.
The organisation also supported the establishment of a Makarrata Commission, separate to the Referendum Council, to oversee agreement making. It advocated for the inclusion of a Commissioner from each state, to ensure issues from across the nation are considered, and suggested that the terms of a national agreement should be developed through extensive consultation with Aboriginal and Torres Strait Islander peoples.
The organisation also highlighted the need to incorporate traditional decision-making processes and involve Senior Elders and community members.
The Committee also heard evidence about the operation of the South West Native Title Settlement, negotiated between the South West Aboriginal Land and Sea Council (on behalf of the Noongar people whose traditional lands stretch from Geraldton to Esperance) and the Western Australian Government.
Ms Gail Beck, Regional Development Manager of the South West Aboriginal Land and Sea Council, outlined the process undertaken to negotiate the settlement. She described an extensive, two-year consultation and deliberation process amongst the Noongar people regarding the desirable components of an agreement before three years of negotiations with the state government.
Like the Narungga Nations Aboriginal Corporation, Ms Beck highlighted the potential for agreements such as the South West Native Title Settlement to improve the socio-economic outcomes of Aboriginal and Torres Strait Islander peoples:
… this settlement is going to give our people, [the Noongar people] job opportunities. It’s going to give our young ones a sense of hope that they could become whatever they want to become. While at the moment it’s always the hand out and not the hand up, this is going to give us, in time, our own bank so that we can come to the federal government with $5 000 and say, ‘Can you match that?’ And it’s going to give us a sense of pride and an opportunity to reinvigorate or awaken our cultural knowledge and practices, because they have been asleep for a while.
The Committee received a submission from the Victorian Minister for Aboriginal Affairs, the Hon. Natalie Hutchins MP, outlining the current state of the Victorian Government’s process to work towards a treaty or treaties with Aboriginal Victorians. The submission stated that the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 (Vic) creates a roadmap towards future treaty negations through:
requiring the future Aboriginal Representative Body and the Victorian Government to establish the elements to support future treaty negotiations, including a Treaty Authority, treaty negotiation framework and a fund to support Aboriginal self-determination;
enabling the Aboriginal Representative Body, once established, to be formally recognised as the State’s equal partner in the next stage of the treaty process; and
enshrining guiding principles for the treaty process.
The submission highlighted that constitutional recognition and agreement making are not mutually exclusive and can work in parallel to contribute to reconciliation and ensure Aboriginal self-determination is realised in a practical way.
The New South Wales Aboriginal Land Council highlighted its advocacy for agreement making in that state:
At the moment, the New South Wales Aboriginal Land Council is engaging with all parties in the parliament and is seeking to commence a process that is bipartisan—in fact, a multiparty process that has Aboriginal people and the parliament meeting as equals… It’s an important issue for Aboriginal people and the entire state of New South Wales.
Views on truth-telling
The Committee did not receive a great deal of detailed evidence on the structure, responsibilities or operation of a Makarrata Commission. A large number of submissions expressed support for the concept of truth-telling without suggesting any specific mechanisms to facilitate this process.
The Referendum Council noted that ‘a truth-telling commission could be established as part of any reform, for example, prior to a constitutional reform or as part of a treaty negotiation’. It also emphasised that truth-telling should encompass the ‘true history of colonisation’ and the ‘stories of how First Nations peoples have contributed to protecting and building’ Australia.
Ms Ebony Hill of the Djugun, Guda Guda, and Gooniyandi sovereign nations, suggested a royal commission or a parliamentary inquest.
The National Congress of Australia’s First Peoples (National Congress) recommended the creation of a Truth and Justice Commission to supervise, amongst other things, the process of truth-telling. It recommended that the Commission be tasked with:
investigating the histories of various Aboriginal and Torres Strait Islander nations;
recording findings in official reports for each nation; and
setting up ‘keeping places’ for each nation.
Dr Roger Thomas suggested that truth-telling could also contribute to reconciliation if it is structured in a way that engages Aboriginal and Torres Strait Islander peoples and the broader public:
We then have to ask ourselves a question, as First Nations people: how do we design and structure and present it in a way that brings people along with us, rather than having them go away feeling negative and feeling as though they’ve been put into a situation where they’ve got to wear the bad practices and policies of their predecessors? So that is a challenge that we, as First Nations people, have got to take on.
The Statement from the Heart Working Group emphasised the importance of a establishing a Truth-Telling Commission to strengthen the process of agreement making. It argued that failing to establish a Truth-Telling Commission could ‘dilute the process of agreement making’.
Mr Peter Yu, Chief Executive Officer of Nyamba Buru Yawuru, a not-for-profit company owned by the Yawuru native title holders of Western Australia, also highlighted the importance of a Makarrata Commission as a way of dealing with historical grievances. He suggested that it should encompass a national oral history project and the establishment of a centre at the Australian National University.
Mr Yu spoke of the need for communities to take ownership of truth-telling, telling the Committee that his suggested model would empower communities in such a way:
… local communities involving local governments to tell their stories, their oral histories, so that they can research that and keep those stories in their local shire council offices or historical centres.
Mr Yu argued that the model would provide ‘a healing process’ that brought people together.
Professor Megan Davis of the University of New South Wales also advocated for a local truth-telling process:
… clearly people wanted that truth telling to be done on a local level—not to have some South African style truth commission but to allow First Nations to map out that truth with local Australian historical societies and local councils.